9. Memorandum from the Committee on the
Administration of Justice
INTRODUCTION
The Committee on the Administration of Justice
(CAJ) is an independent cross community group working for the
protection and promotion of human rights in Northern Ireland.
It has long worked to try and ensure the highest standards in
the administration of justice, and to hold the UK Government to
account for upholding its commitments to the various international
human rights treaties it has signed and/or ratified.
CAJ has often commented in the past on the Government's
lackadaisical response to the important conclusions and recommendations
of different UN bodies. Indeed, one of the most disparaging responses
was recorded in a CAJ submission to the UN's Human Rights Committee
wherein we cited Baroness Blatch, Home Office Minister of State
speaking to the Lords in October 1995. When asked if any action
had been taken by the Government in response to comments made
by the UN Human Rights Committee, Baroness Blatch, speaking officially
on behalf of the government, told the Lords "We do not
plan any specific changes in our arrangements for the protection
of human rights in the UK in light of the committee's views .
. . The Government regret that the (UN Human Rights) committee
does not appear to have taken into account our long-standing cultural
traditions and other particular circumstances which determine
the way in which human rights are protected in this country nor
the fact that the protection provided in the UK in relation to
human rights is among the best in the world".
CAJ accordingly warmly welcomes the decision
of the Joint Committee to challenge any such complacency, and
to launch an inquiry into the June 2002 Concluding Observations
of the UN Committee on Economic, Social and Cultural Rights as
they apply to the UK. We furthermore hope that this inquiry will
become a model for examining UN or Council of Europe human rights
findings in future since it provides an excellent mechanism of
Parliamentary scrutiny of the UK's compliance with its international
human rights commitments.
CAJ'S WORK
TO DATE
IN RELATION
TO THE
UN COMMITTEE ON
ECONOMIC, SOCIAL
AND CULTURAL
RIGHTS (UNESCR)
CAJ has engaged actively in the work of the
UNESCR in 1994, in 1997 and again in 2002.
In the most recent cycle, CAJ was somewhat less
active than previously, but nevertheless, in advance of the examination,
we:
— circulated a range of Northern Ireland
based non-governmental organisations (NGOs) with information about
the existence of the Covenant on Economic, Social and Cultural
Rights, the work of the Committee, and how and when submissions
could be made. We attempted thereby to encourage active engagement
in the process by the NGO sector. We are aware that a number of
submissions were made to the Committee by Northern Ireland based
NGOs;
— developed our own submission (S 128;
May 2002);
— contributed to a UK-wide submission
organised by Justice and signed up to by 18 different NGOs. For
the text of this submission, the Committee should contact Justice
directly; and
— and we sent an observer to Geneva
at the time of the examination of the UK by the Committee.
After the examination, CAJ:
— issued a press release;
— published information on the conclusions
and recommendations in our organisation's monthly newsletter (see
extracts from our May, July/August, and September 2002 newsletters
attached);
— circulated the UN findings to the
Northern Ireland NGOs previously contacted;
— wrote to the devolved administration
(OFM/DFM) on two separate occasions (May and July 2002), though
we have yet to receive a substantive response; and
— and have sought to use specific recommendations
as and when appropriate in ongoing work to promote improved protection
of rights in the UK. Examples of such initiatives will be given
in response to specific questions below.
THE JOINT
COMMITTEE'S
QUESTIONS
Should the Covenant on Economic, Social and Cultural
Rights form part of UK law?
The CAJ believes that the Covenant should form
part of UK law. Clearly, the UN Committee, not the UK Government,
is best placed to determine if the Treaty obligations are "principles
and programmatic objectives" or "legal obligations".
If the UK Government were formally to resist the Committee's interpretation
of the status of the Convention, it would in our view be required
to re-visit its signature and ratification of the Covenant itself.
At the same time, CAJ thinks this would be an extremely retrograde
move and a highly embarrassing step for the UK Government to take
given its status as a permanent member of the Security Council
and one of the founders of the United Nations. Logically, therefore,
if the UK government wishes to maintain its acceptance of the
Covenant it must accept that this acceptance imposes legal obligations
on the UK.
A persistent refusal to incorporate the Covenant
does not release the government from such legal duties; it merely
succeeds in denying UK citizens from exercising their legal rights
in domestic courts. This situation is unacceptable and should,
in our view, be remedied.
The manner of ensuring the justiciability of
these rights is, as the UN Committee makes clear, a matter for
each State Party to determine. CAJ has no fixed position on how
to ensure the Covenant forms part of UK law, but is convinced
that it should do so.
The Joint Committee asked for evidence of areas
where the lack of incorporation had led to lesser or unsatisfactory
protection of economic, social and cultural rights. CAJ would
suggest that this question is best answered under the specific
issues that follow on below (eg anti-discrimination provisions,
National Minimum Wage etc). However, this may also be the place
to record our concern at the debate about the possible non-inclusion
of effective socio-economic protections in any future Bill of
Rights for Northern Ireland. Ministers and civil servants have
indicated to ourselves and others that the UK government has reservations
about including economic and social rights into any such Bill
of Rights. No similar position in principle has been enunciated
regarding civil and political rights. We believe that these reservations
flow from a concern on the part of Government that many socio-economic
rights are not currently adequately protected in existing legislation,
and they are not yet ready to have these rights imposed "by
the back door".
CAJ believes that the introduction of a Bill
of Rights is an appropriate vehicle by which to ensure that the
UK lives up to all its international human rights commitments
at least in respect of Northern Ireland. We also note that polls
carried out by the NI Human Rights Commission have shown that
a very high percentage of people—whether Catholics, Protestants,
or neither—want socio-economic rights included in the Bill
of Rights. So, the inclusion of such rights is not only in and
of itself necessary and good, it would be helpful to ensuring
cross community support for the rights debate. In this regard,
we were disappointed at the Joint Committee's suggestion that
it would not—in this inquiry—be discussing the UN's
Concluding Observation with regard to a Bill of Rights for Northern
Ireland (para 29). In addition to any recommendation that is made
as a result of the Joint Committee's inquiry into the work of
the NI Human Rights Commission about the inclusion of socio-economic
rights into a Bill of Rights for Northern Ireland, we would urge
the Joint Committee to endorse the UN's recommendation in this
regard.
SPECIFIC ISSUES:
Discrimination
We believe that this recommendation to ensure
comprehensive legislation to end discrimination and promote equality
of opportunity is very important, particularly in the Northern
Ireland context. Moves (though unfortunately now deferred) to
introduce a Single Equality Act would be an important response
to this recommendation. It is moreover very important that the
UN Committee made specific allusion to the Bill of Rights for
NI, and urged the inclusion of economic, social and cultural rights
in any such Bill (recc 29). It would be most important for the
debate in Northern Ireland if the Joint Committee were to lend
its important weight to progress on both a single Equality Act
and a Bill of Rights for Northern Ireland.
National Minimum Wage
The UN says that it is discriminatory to treat
people 18-21 years old differently with regard to the National
Minimum Wage. CAJ believes that this provision needs to be changed
without delay:the principle of non-discrimination is one that
runs through all human rights treaties.
Moreover, the UN Committee—here and elsewhere
in their recommendations—talk of the requirement on States
Parties to ensure an adequate standard of living. The establishment
of a National Minimum Wage is obviously a first step towards defining
an adequate standard of living, but part of its value lies also
in the fact that one thereby creates a benchmark against which
to measure progress. Perhaps the Joint Committee would want to
consider asking government to establish a definition of what in
the UK in 2003 constitutes an "adequate standard of living"?
On the basis of this, the Government could be asked to develop
a programme of work and a timetable as to how everyone could be
brought to that level, and how the level might be expected to
increase over time (see on for further discussion of the progressive
realisation of rights).
The Joint Committee may be interested in learning
that the Council of Europe, which scrutinises the UK record vis-a"-vis
its implementation of the European Social Charter has found the
UK to be in breach of its commitment to ensure "fair remuneration".
Moreover, the Social Charter section of the Council of Europe
may have some useful advice to offer to States Parties about how
best to determine appropriate levels of adequacy in remuneration
and income, since they have extensive experience of working with
a variety of European states about their compliance, or lack thereof,
with the Charter's provisions.
Right to Strike
As noted above, the Council of Europe Committee
of Social Rights regularly reviews member states' compliance with
the Social Charter. The UK has been found to be in non-compliance
with its duty to ensure a right to collective action[69]given
the limitations imposed on the right to strike. It seems that
the UN is making the same criticism, and that it has in the past
already made this finding of non-compliance, but remedial action
has not been forthcoming. It would be excellent if the Joint Committee
commented on this issue in the strongest terms.
Domestic Violence
The figures for recorded incidents of domestic
violence in Northern Ireland are relatively high with between
7,500 and 8,000 incidents reported in each of the last three years
(HMIC annual report 2002). A 7.7% increase in the level of recorded
domestic violence crimes was noted in the last two years. Given
the nature of the offence, and the particular problems faced by
the police in Northern Ireland in securing confidence across all
sections of the community, one might expect that the level of
reported crime will not reflect the true picture, and it is likely
that the incidence of domestic violence is greater than the official
figures highlight. There is a concern that in Northern Ireland
a legacy of political violence may increasingly be "translated"
into violence in the home. This trend needs to be monitored carefully
and an array of tactics evolved to counter any such trend. In
particular, CAJ endorses the UN recommendation about necessary
funding for refuges, and would argue for core funding for policy
and advocacy work in this arena to complement the necessary work
of direct service provision.
Poverty and Social Exclusion
Governments frequently allude to the limitations
referred to in the Covenant on Economic, Social and Cultural Rights,
where states are required to assure Covenant rights "to the
maximum of available resources" and "with a view to
achieving progressively the full realisation of (those) rights".
The UN obligation to "progressively realise" economic,
social and cultural rights cannot however be understood as a carte
blanche to do nothing. It reflects a recognition that all UN Member
States cannot guarantee education, housing, health, or even food
and water, for all their inhabitants, and that they must set clear
benchmarks to assess progress made. As one of the richer members
of the UN, the UK is under a clear obligation to avoid hiding
behind the terminology of the Covenant.
In CAJ's submission to the UN Committee, we
argued that if governments were to "progressively realise"
their obligation to end poverty and social exclusion, they would
need at the very minimum to:
(a) have a concrete plan to move towards
the full realisation of the right to work, or health, or housing
or whatever;
(b) indicate how the plan itself intends
to ensure that the rights are realised progressively over time,
and resources are being made available accordingly; and
(c) have a plan which sets targets and timetables,
and arises from an open, public, transparent and participative
process wherein decision-makers have been held properly to account
and alternatives have been actively considered.
CAJ argued that the Government, if it is to
"progressively realise" its obligations under the Covenant,
clearly cannot introduce any policies that would amount to a regression
in rights' protection. We also argued that the whole process of
establishing a plan, setting timetables for change over time,
and measuring progress made, should be an open and transparent
process. Only in this way, can the Government show that it is
genuinely seeking to meet its obligations fully and to progressively
realise its obligations. We are not aware of the UK Government
having carried out these three basic steps and we believe that
the Joint Committee would move the debate on very positively by
requiring the UK (and indeed its constituent parliaments/ assemblies)
to develop such a plan of action.
CAJ understands that such a plan of action is
required by the UN by recommendation 25 (on the strengthening
of institutional arrangements to "human rights proof"
government legislation and policy), recommendation 27 (the need
to develop a national human rights plan of action), and recommendation
45 (the requirement to report on follow up to all of the other
recommendations).
Any such plan would then allow the Government
to indicate the ways in which it intended to address many of the
other issues raised by the UN—issues of homelessness, housing
and fuel poverty, further and higher education etc. It would also
allow it to address many of the issues which are alluded to in
the Good Friday/Belfast Agreement relevant to socio-economic rights
but which have fallen somewhat down the agenda—including
commitments, for example, to ". . . a new more focused
Targeting Social Need initiative and a range of measures aimed
at combating unemployment and progressively eliminating the differential
in unemployment rates between the two communities by targeting
objective need".
Integrated Education
Clearly there has been an improvement in recent
years of the funding of integrated schools in Northern Ireland,
but the demand has still not been met. The existence of more,
and better financed and supported, schools may mean that there
could be value in reviewing public policy generally in this area.
To date, integrated schools have evolved largely at the instigation
of, and due almost entirely to the efforts of, concerned parents.
The Joint Committee may want to discuss what is the role of the
educational system in contributing to the creation of a society
in which cultural diversity, tolerance and mutual respect is the
norm? And, given such a vision, what are denominational schools
and integrated schools doing to this end—are they being
effective, how could they be made more effective?
This debate will probably be taken forward—indirectly
at least—in the form of feedback to a consultative document
issued by OFM/DFM in January 2003 (A Shared Future: A consultation
paper on improving relations in Northern Ireland). Somewhat surprisingly,
however, there appears to be limited data regarding the contribution
that integrated education, housing, leisure activities etc . .
. —can make to creating such a society. Indeed, there seems
even to be limited analysis of what constitutes sectarianism,
and what constitutes an effective programme of action to combat
sectarianism (inside and outside the classroom). The Joint Committee
may want to reflect on these issues given the concerns raised
in their recent inquiry into human rights commissions, and the
very great importance that needed to be invested in the creation
of a human rights culture throughout the UK.
THE REPORTING
PROCESS
Preparation of UK report
CAJ has no strong opinion about the appropriate
role for NGOs in the drafting of the UK (or devolved) Government
report. There certainly may be a value in letting NGOs have early
sight of the draft, so that they can inform and enrich the debate
with Government about its compliance, or failure to comply, with
key commitments. It is worth noting, however, that few NGOs have
the capacity or resources to engage in a very detailed and labour-intensive
report-writing stage, especially when it is unlikely that they
can very much influence policy at this stage.
On the contrary, we do however believe that
the devolved administrations must and should have a vital role
to play in developing the UK's report to the UN. It is our experience
that official reports to the UN are essentially prepared by civil
servants, and are subject to little or no political scrutiny.
At the devolved level, this is particularly problematic for a
number of reasons:
(a) it is politicians who determine policy
and should be held to account before national and international
institutions for their adherence to international human rights
standards;
(b) similarly it is politicians who must
change/amend/develop policy in line with the Committee's findings
once the report has been submitted; and
(c) accountability to the international institutions
and to the electorate requires that politicians authorise and
guide the work of their civil servants.
CAJ was and is still very unclear as to the
extent to which local elected politicians in Northern Ireland
even knew that a report was being prepared in their name, still
less authorised the report.
Similarly, we are unclear of the extent to which
the NI Human Rights Commission and/or the Equality Commission
for Northern Ireland were actively involved in the process. This
may be something that the Joint Committee wants to pursue in its
inquiry, since these two bodies clearly should have an important
role to play in advising government (particularly the Northern
Ireland Assembly and public service) on their obligations under
international human rights treaties.
FOLLOW-UP
TO THE
UN'S FINDINGS
Responses from devolved government
As noted, CAJ wrote to the devolved Government
on 23 May 2002 and again on 31 July 2002, asking what steps had
been taken to (i) disseminate the information across relevant
departments; (ii) what action was being taken by those departments.
Both letters can be made available upon request, but it may be
just as convenient to summarise here the key concerns we raised:
— having been informed by the NI administration
that "all the NI departments and devolved administration
was fully involved in all stages of the report", we expressed
some concern that local NGOs and, more importantly, the NI Human
Rights Commission was not consulted in the preparation of the
report.
— Would the devolved administration
consider urging the UK to change the report's format for future
cycles?
— What had the Office of the First
and Deputy First Ministers done to encourage the development of
a "national human rights plan of action " ((para 27);
what had it done (as a central coordination point) to ensure that
all departments were made aware of the relevant recommendations;
and what were they (or others?) doing to set in place monitoring
mechanisms?
— With regard to issues that fell directly
to their own area of competence: what were they doing about the
recommendation on the smacking of children? On human rights education,
especially for civil servants? And regarding the recommendation
to review and strengthen institutional arrangements to that legislation
and policy at an early stage is "human rights proofed"?
Although our first letter was replied to in
somewhat unspecific terms, no reply has been forthcoming to our
second letter (summarised above). Given the suspension of the
Assembly in the meantime, CAJ has not very actively pursued its
questions. It is unclear to us what action, if any, has been taken
by the Ministers under Direct Rule or indeed whether they have
even been made aware of their "new" responsibilities
in this regard. The Joint Committee may well want to pursue this
directly with them in the course of its inquiry.
Contributions from statutory bodies
It is not clear to us what role is expected
or performed by statutory bodies that have a role in advising
government of its responsibilities under international human rights
law. As noted earlier, we do not think that either the NI Human
Rights Commission and Equality Commission were asked for input
into the governmental report. Is this due to an oversight or is
it not thought appropriate by them, or by Government, to be so
involved? Similarly, we are unclear of the extent to which either
of them were invited by the Government to comment on how the Government
could best implement the UN findings.
CAJ believes that there is a useful role to
be performed by such bodies, but it is neither that of government,
nor that of NGOs. This distinct role is being increasingly recognised
at the UN with separate mechanisms for consultation. Obviously,
a parliamentary committee like your own can expect the Commissions
to be very helpful.
Parliamentary role
Firstly, we would again warmly welcome this
initiative by the Joint Committee. We think that this pro-active
scrutiny role is excellent and we circulated your call for submissions
to a number of Northern Ireland NGOs, urging them to take advantage
of this unique opportunity to engage Parliament in holding the
Government to account for its international responsibility to
protect economic, social and cultural rights. Indeed, we did not
respond to some of your questions assuming that other groups,
more specialised in the area—eg homelessness, fuel poverty,
higher and further education—would be in touch directly
with your Committee.
We would urge that this be the first of many
such inquiries, and that—having established a "plan
of action" or guidance to Government relatively soon after
the UN hearings that you determine to hold further hearings at
some point in the future so as to assess the extent of Government
compliance with your advice.
We would also urge you to determine where in
Government could one place some central oversight of UN reporting
mechanisms. For those outside of Government, it is very difficult
to know which is the central point for lobbying around CEDAW,
CERD, CRC etc etc. Could not one central office be a "clearing
house" for such information? Apart from being highly practical,
it will facilitate greater accountability for the UK's compliance.
Advice for future reporting
CAJ has noticed that the Government's reports
to various UN bodies are getting longer and more detailed. We
are not convinced this is a welcome trend. We believe that Government
submissions should—
— Report separately and unambiguously
on the practice in the component UK jurisdictions. While there
has been great improvement in this regard in recent reporting
cycles, this was not the case consistently in the past, thereby
rendering difficult any effective accountability.
— Otherwise the focus, in our view,
should be on.
— Improvements since last time.
— Problems that have arisen in
the reporting cycle.
— Good practice to be shared with
other member states.
— Areas where Government would
welcome learning of the good practice of others
It may be that the UN insists on reports of
the detail and complexity now supplied, but we are doubtful. Our
experience is that extremely detailed and overly complex reports
tend to cloud rather than facilitate effective scrutiny. The UN
has few sanctions available to it, and the reporting cycle is
primarily intended to be a forum in which Member States are assisted
to comply with their obligations. CAJ believes that more frankness
as to the problems being encountered and the challenges facing
the Member State, rather than tedious administrative detail is
what is required.
Moreover, we are concerned that at some point
the UK will start to assert that the examination process has become
too onerous. The amount of work that goes into collating and verifying
the detail provided must be very extensive. The Joint Committee
could help by seeking clarification on this point from the draftsmen
concerned and/or the UN bodies directly.
Last but not least is the issue of circulation.
CAJ has never received a copy of UN findings from any Government
body or official despite having made submissions to most UN mechanisms
over the last fifteen years. We think it is highly unlikely that
any other NGOs are informed by the Government of the UN findings
and we would urge the Joint Committee to ask the Government about
its circulation lists.
Perhaps even more importantly we are aware of
relatively little circulation of these documents to relevant Government
departments for their study and implementation. The Joint Committee
may want to conduct its own mini-survey to ask if the findings
of the UNESC (dating from May 2002) have been circulated to bodies
such as—
— The Northern Ireland Housing Executive
(reccs 38 and 39).
— Department of Finance and Personnel
and Treasury (reccs 33, 35, 37, 41 etc).
— The Northern Ireland Human Rights
Commission (recc 29).
— The Law Society and Institute of
Professional Legal Studies at Queens University (see recc 30).
CAJ very much doubts that this is the case.
Indeed it is unclear even who would be responsible for such circulation.
If the Joint Committee could secure clarity on this latter point,
this already would be an advance.
SUMMARY
1. CAJ welcomes very warmly the Committee's
decision to carry out an inquiry into the Concluding Observations
of the UN Committee on Economic, Social and Cultural Rights. We
hope that the Committee will make it a routine practice both to
look at all Treaty Bodies, and to regularly assess progress made
by Government in the implementation of the various recommendations
made.
2. CAJ endorses the UN conclusion with regard
to the need for the UK to incorporate its obligations to protect
and promote economic, social and cultural rights into domestic
legislation. We urge in particular that the Bill of Rights for
Northern Ireland should incorporate such measures.
3. CAJ believes that the passage of a single
piece of comprehensive equality and non discrimination legislation,
in the form of a Single Equality Act, is the best way forward
in Northern Ireland of giving meaning to the UN findings about
discrimination.
4. CAJ endorses the various UN findings
on Minimum Wage, right to strike, domestic violence, poverty and
social exclusion, homelessness etc. We urge the Committee to require
Government to prepare a plan which sets out how it will progressively
realise all its obligations under the Covenant.
5. CAJ recommends the Joint Committee make
a series of recommendations about the preparation for and follow
up to UN Treaty Bodies, on the part of Government, statutory bodies,
and non-Governmental organisations.
May 2003
69 Ibid. Back
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